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>> i've got some rough numbers. i see that most of the coverage, about 90%, goes to stores with easy labels, stray bolts, caught in the crossfire, multiple
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victims, a child, a police officer and a few other things i'm probably forgetting. about 90% doesn't fit under any of those. if news value calls from deviation from the norm, roughly one person has been killed every day the last 25 years and the ability. the one person killed to date is in itself a deviation. but all metrics it's not news. >> i'm a photojournalist, and i did spend roughly 10 days in newtown covering, and i want to make a comment first, ma and it's just a bit of irony in regards to the reporting. but probably on the anniversary of the date, the friday, there was a vigil. if there's anybody here from that area i believe it's a park that is part of a town where they have government offices.
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it's i believe a former mental hospital. so here is this mass vigil with thousands, maybe a couple thousand people. i'm in the background of this old building at one time with this mental facility, which is now shattered. i saw some ironing and that considering it had been important. the the question, it's a very beginning of your comments you said, and i'm loosely -- you said being famous is very important. perhaps you're suggesting, are you suggesting that people put their humanity aside just to be famous? are you suggesting perhaps that at least in part that adam lanza nudity be famous because -- it so important because humanity became secondary? >> i really can't speak for the
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shooters of moses butt ugly our culture often plays a celebrity above everything else. and how one gets there becomes really secondary in getting their, and i think social, not our social media but our television, reality tv and things of this nature, i think show that. not to be critical, but to be critical, i think that that does -- it is a problem. >> i wrote a book on columbine. charles, a couple question. i wanted you to clarify the 70%. because i thought that was fascinating. and i want to get my tweet right. was a 70% of college students thought about -- >> had a homicidal thought in their last year.
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>> and how did you know that? >> well, i know it from stephen's book, "the better angels of our nature," which is on the fall of violence historically over the years. so he quoted it. so i'm quoting him. >> i was just curious. >> i'm not sure how the study was done. but in the book he does say that one of the students yelled out, the other 30% are lying. [laughter] >> these were male students by the way. >> i was wondering about anybody else on the panel wanted to comment on the whole idea of red flag and how easy they are to sort of seat in retrospect and if you think we overplay this idea. >> i was fascinated by the fact that the fbi interviewed one of the bombers a year ago and cleared him. so if the fbi can miss a bomber,
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what can that show us in the mental health field? being able to predict future violence is just an impossible task. and there's just no way around it. >> alain, did you have any thoughts on that, having looked at the shooters so closely? and even some of come on thinking of that one case and others spinning in the home invasion case, the red flags were there. joshua had this long history of breaking into people's homes, or the rising them with night vision goggles. the red flags were there on that one. steven hayes, he was the other defendant, both incidentally are on death row in connecticut. they are part of the group that still faces the death penalty, although there's going to be arguments tomorrow at the
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supreme court on the whole issue of whether not it's retroactive. so the red flags with there. i think in adam lanza's case, like i'm missing before, had he stayed in school in the system, maybe those flags would have been there for someone else to see. you know, he killed his mom, and his mom clarity was the one person who probably knew the most about him. what was interesting to me, and i tried to see if the father would speak with me. i tried on numerous occasions to get him to talk to me. there was something in 2010 that made him cut his father off. if, indeed, what his father telling me is true, or what i've been told. from people that know him. there was something in 2010 that really just set out him off made them cut off both his father and his brother. the divorce was going on, he's getting remarried, we don't know if those are key. but the one thing that i've
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always thought about without them, we were talking about the need to be famous and all of the, i haven't seen anything with that, but the little girl that said he looked very angry, i think this whole anger issue, i don't know, this is just a guess on my part, but when the report comes out and the police release all of that, his anger issues will really tell us or haps what drove him to do this. >> any live stream questions come in? >> [inaudible] >> from my stream, monaco roberts wants to know, as a culture what are three things the doctor would recommend we do differently, such as no video games or parenting differently, that sort of thing? >> doctor? [laughter] >> god. to me it's about community.
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it's about a network. and clearly studies demonstrate over and over again the stronger there is a network, then there's a community, a principal said that while earlier today about communication, open and available communication is critical. obviously, there are red flags with respect to adam lanza. he was uneducated, he was isolated, he was going nowhere with his life. but that's true with, i don't know, 95% of the kids that are referred to me. so i, i just, you know, find it very difficult to describe some sort of recommended treatment. ultimately, nina, you look at basic mental illness, our rates of mental illness are no different, serious mental illness are no different in our society than in western europe.
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our rates of, you know, personality disorders are no different. so what distinguishes us from western europe? why are we filing in western europe is not? -- why are we violent and western europe is not? it's all about unity and that's good if you're in a roomful of journalists, among others, who are trying to figure out how to tell that story, what the indicators are, what the measures are, not to explain then you can shoot her, but to try to be a good watchdog of our social safety net, say connecticut or somewhere else. from your point of view, from your expenses as a clinician, where should the journalists -- your experiences -- be looking in order to begin to investigate
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whether in mental health and other key social safety related areas we are really doing as good a job on community as we can. where should we look? >> well, i think one of the things the principle of newtown high school mentioned was psychiatrists, building resiliency, and i think that's an interesting compelling story. uganda helped with victims suffering dramatic experiences there. you know, i think focusing on community connections and community resilience are going to be an interesting card. and it's those people who fall through the safety nets, so to speak, if you consider that a safety net. that are perhaps the red flags that earlier we were asked to call upon.
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and so, you know, the challenge though in journalism, i agree it's not sexy, so who's going to read it? >> but that's the procedure. get people to read it. next question. >> quick question. you mentioned, dr. herrick, terrorism before, and i wondered if the panel could share their thoughts about why some events are characterized as terrorist attacks, why some perpetrators are characterized as terrorists, like in the boston bombing, for example, whereas in mass shootings they are not classified or defined as terrorists or terrorist attacks? who makes that decision and how does it affect coverage? >> anyone? >> i mean, i think, my perspective, i think if there's
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an ideology that is political or religious in nature, then they are defined as a terrorist. but if it's personal, and it's a mass shooting. so i see that, but that's not a scientific decision. that's a cultural competency societal decision. they may have the same brain, but different motives for different reasons. so i feel strongly about characterizing this incident as a form of domestic terrorism. i personally see it that way. we would not be sitting here today talking about this if it were one child or one teacher. the fact that it has created such a huge amount of attention in press, from my perspective is what defines terrorism. the attention that it draws. and i believe that, again,
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speculation, i believe that that was intentional. >> one doesn't choose to do that without understanding what will happen as a consequence. >> i'm curious, was there any internal debate about whether to apply terrorism as an adjective to this, as the word to this? >> none that i was aware of. >> but i think the thing we need to remember is, isn't it interesting that there's all this writing that we been told about that adam lanza left behind? it's going to be interesting to see what he said in those journals, and perhaps it's a good question you ask. perhaps maybe we'll learn more about him in terms of the word, you know, terrorism. and you know, it's not just a press response india with terror. it's also how schools and towns have reacted, too. it's really good question you ask, because school starting
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lockdown drills all across connecticut. some are considering hiring armed guards for the school. so yes, i guess it really is a good question. >> some of them may go to intent. was there an intent to create lasting fear, sort of sink that as one of the key components of terrorism. it's fair to assume any 9/11 type thing, and that was not let's try to kill a couple thousand people. it's let's try to damage it is society going forward. we don't know from sandy hook. i think the initial assumption was it was a troubled kid who said let's kill a lot of people. maybe we will know later what he think about the lasting -- was he hoping to leave that intact, in terms of what schools are not doing, what legislatures are now doing. >> mike patrick from the republican american newspaper. this is a question for dr. herrick. you mentioned earlier that
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labeling crazy our mental illness or using that as an answer to why someone did something like what happened in newtown tends to stop the questioning their people say okay, of course he was crazy, there's his picture, crazy picture. then we have our solution. journalists are human, we look for the answer, too. we also tend to perhaps, people turn to us for answers and we provide some. that it was to get mental illness. how do we approach as journalists folks like yourself in a way that would keep the line of questioning open? how do we refrain from using that immediate, or looking for that immediate answer? and is there a way that we as journalists can approach folks like yourself to keep that line of questioning open and to keep the dialogue more positive?
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>> yeah, i mean, when you start asking psychiatrists questions, the presumption is always the perpetrator must of been mentally ill, that's what i'm editing a psychiatrist, as opposed to an fbi agent or someone else. so you know, again as i said earlier, people with mental illness can make crimes all the time for the same motives that we see other people commit crimes. just because one has a mental illness does not explain the motives behind their act. so to open the conversation for the need to explore further. one of the things that came out of the news with regard to adam lanza was as burgers. i can't tell you how many clinicians got phone calls from anxious mothers because their children have as burgers. that's kind of when talking about in terms of trying to keep
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the conversation open because it's not a red flag. and so why it would be used in the press as an explanation, i think did not follow the dark centers tip sheet on, you know, using the race -- using the press in a responsible manner. >> i think that was one of the things that some trusted want to try to clarify. see, remember, his medical reports have not been released. that's one of the issues with public access right now is, and to talk to some prosecutors who have quietly said let's release the report so we can see if and what there was something that adam lanza was dealing with, what it is and see if it had any type of effect on what happened. and those records still have not been released. i think to some degree when something like this happens there is this push for public
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access because we want to see if there is a record that may be reflects -- maybe it won't ever tell the store and maybe it won't give us an explanation, but isn't it better to be armed with the most information so that perhaps there is an avenue we can explore that might maybe answered a few more questions? so i was wondering, doctor, how do you feel about windows reports come out, you think it is important for the public to see adam lanza's health report, his medical history? >> i'm not sure that it will answer the questions that we are looking for. as again, i said, suppose he was seen and he was found to be depressed, would that explain why he did this? young men who are depressed are often angry, and express their depression in that type of situation. i think that that's a facile answer, and i think that it
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will, to my mind, do more damage to those who actually struggle with depression and it will not explain exactly what motivated him to do what he did. so you know, i think the reason why his records have not been released have to do with hipaa. the fact that he's deceased, that those records will ever be released, i don't know that for a fact. probably it will get sorted out in the courts. i'm not sure it will answer the question. >> we should say on the next panel will have dave cullen who spent a decade looking at columbine, including the mental health history perpetrated and we'll see what the conversation was. one more question. >> brad, photojournalist. freelancing. first of all, i want to say,
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alain antonetti, that it's really commendable that you guys to the frontline story. the reason for that is journalism suffers from a thing that most american companies don't suffer from, and that's tireless promotion. one of the problems with journalism for the 72nd it was that you don't explain enough what you're doing and how you do it. but more importantly why you do it. it has a huge function not only in democracy but trying to get people to understand. having said that, i have a son who have aspergers so i panicked as everybody else, but then i know my son really well. but it also speaks to something you brought up, and you brought up, too, doctor, and that is that if the fbi couldn't catch the guys in boston, the thing that i was wondering is how could you even have your son if he thought he was violent, and then again? she never thought, it was impossible for him to be violent
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otherwise why would she go target practicing within? that also speaks to something we need to do a little bit more of, which is a way to make ourselves better, improve the profession. and one of those things is the problem with some of the journalism, as well as psychiatry is that we tend to look at these things as being the solution when, in fact, there are limitations both psychiatry in journalism, you can't always know things. we are trying to advance both of those things at a time when you look at doctors as being gods and journalism, always finding other things. the fact that being a journalist for 35 years, we note about 10% of what's going on government or maybe we've gotten to the tip of the iceberg that's going on below the criminal justice system are what's going on with criminals or what's going on with corruption. we very rarely get to the bottom of any of.
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so we're talking about limitations. journalism doesn't explain everything, or if we can explain anything. so i suppose those are comments i wanted to put out there. like i said with my son, i was seeing the same thing. but it brings up something really, really important i would look into if i was doing research in psychiatry, and that is there's a bigger issue here of fitting in. and that that is an american thing. it's probably a societal thing, bigger in asian society come and that is if you reach the age of 19 or 20 and have no place to fit in and you are not part of the, whether immigrants coming in or whether it's a young man who has aspergers or autism, if you don't fit in, and what does that mean for the rest of your life and are you hopeless enough at that point to do something really violent because you really angry, especially in a society, these are just observations but as a journalist and as a father, something i've
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done your. >> and the broad philosophical is probably a bookend for a conversation about going deeper. any kind of closing thoughts, brad, or things speak with you get psychiatry way too much credit. and i agree, and this gets back to the idea of the community and connectedness. because you can identify those kids early on who are not fitting in, you can get them, get to know them better and help them to find the kennedy -- [inaudible] >> job as a reporter. >> exactly. >> to get up on what you said about the profession maybe not doing a very good job, sort of explain what it does. what i been thinking of late that we sort of need to rethink the role of journalists, not remake the role but we think the perception of the role of
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journalists. there were two things that led me to this. i was watching right after the bombing in boston, i was in florida, in the back of the card looking at a shaky video on my iphone, and right after the blast that was what appeared to be a professional photojournalist based on what he was, a videographer, sort of very quickly moving toward the blast. and within 30 seconds or so a police officer shoot him away. and i thought, what a stupid idea that was. you've got a very active crime scene, you've got someone capturing it professionally, and you're going to shut him down, or she, as a member of the media. i was on a panel a few weeks ago, that connecticut newspaper daily association, and so whether have asked, you know, did we really need to have that many journalists in newtown? couldn't we have sort of cut them a little break?
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do we need that many satellite trucks? and i thought from that, you know, and, in fact, that i had on the town, and i imagine the scene at the firehouse immediate afterwards, these terrified parents, terrified children. and you had scores of police officers that are with semiautomatic or fully automatic weapons. you had owned the numbers of police cars. there were helicopters in the sky. and all of that must have been scary and dramatic, but nobody would say, do we really need that many cops on the scene? put the helicopters wait until the kids don't have to see it? when everyone understood that the police officers had a role to play there, and i made sort of a modest proposal that any tragedy like this, the media has a role to play as well. and it is an unpleasant role and sometimes a difficult role from and to rule that is going to
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upset people. but i sort of put this modest proposal out there, journalist ought to be seen to some extent as first responders as well. and it's not purely a voyeuristic thing. there are people we know all over the world who had, you know, an authentic concern for the people of sandy hook and what had happened there. and also people, in the case of boston, who need information about what was going on there. and the media played a pivotal role in the. so my final rant on it, that there may be times to rethink and sort of commune, we need to do our part as well, but to respect the role of journalists in covering ms tragedy and think of us as just another essential first responder with a difficult job to do. >> let me say maybe by way of closing, because we're out of town -- out of time, matt and a link, you can watch them doing
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their job, and by public explanation of the work the reporters in aftermath of sandy hook come at frontline's website, right, and that the currents website as well. the sandy hook documentary is there. so thank you, conversation continues, set off some huge things that i think will resonate in our next panel on where the story goes from here. let's take 15 minutes, come back and take it from there. thanks guys. [applause] >> [inaudible conversations]
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>> coming up this morning on c-span2, a look at the legal ramifications of companies using social media information and the hiring process. that's followed by cabinet secretary on their department. and live at 10 a.m. eastern, the u.s. senate turns to work on a bill to fund army corps of engineers water projects. >> today, the senate homeland security committee holds a hearing on immigration policy and border security. representatives from immigration and customs enforcement, customs and border protection, and homeland security office testify. live coverage at 10:30 a.m. eastern on c-span3. >> today, securities and exchange commission chairman
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mary jo white, testifies on the president's 2014, $1.67 billion budget request for the agency and england edition of the dodd-frank financial. she will appear before the house appropriations subcommittee on financial services, live at 2 p.m. eastern on c-span3. >> you're watching c-span2 with politics and public affairs. weekdays between live coverage of the u.s. senate. on weeknights watch key public policy events. and every week in the latest nonfiction authors and books on booktv. you can see past programs and get our schedules at a website. and you can join in the conversation on social media sites. >> next, a look at social networking and the hiring process. a panel explores the privacy, social and policy implications that arise when employers use social media and other publicly
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available electronic information they gather personal data on potential employees. this event from fordham university law school in new york city is 90 minutes. >> welcome everyone. thank you. my name is andy roth. i may for a proud graduate of fordham law school, 1998. and after i left forum i practiced law for a bit. ultimately, became chief privacy officer at american express, at that job for six years and then most recently went back to her law firm, and lead the global privacy and security practice there. you have an amazing panel. i'm going to introduce some of the painless. we will be talking about employment and social media, and the intersection of the two. first panelist is patricia
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sanchez abril, who is an associate professor in the business logic board and university of miami school of business administration. she has written extensively and researched on the topic of social media and employment and the privacy in both spanish and in english i believe. and i think has a very interesting approach, not only from an academic and legal perspective, she also is an accomplished lawyer as well. but also from a sociological perspective, having dealt with students all the time. we also have geoff andrews. geoff is the chief operating officer of social intelligence corporation which is a company that is focused on leveraging social media inside to help companies make better decisions. and he has a background in technology and data with several companies, including steel card,
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which got bought ultimate by choice point commend you for that pricewaterhousecoopers. and, finally, we have renee jackson who is an associate with nixon peabody in san francisco and approaches same topic but from employment law contact -- context with big expertise again at the intersection of social media, technology and the law. and without further ado i will pass it to patricia. >> thank you. okay, so i see my role here today as not only facilitating conversation but kind of framing the issue. this is a big issue with a lot of i guess some issues going on. so for the next 10 mins or so what i'm going to do is present the arguments, the issues, the salient points from both the employer side and the employee side to them kind of create a
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background for a case study that will be presented by my co-panelists. let's first note that this panel is narrowly focused on the process before either hiring or the denial of employment. so we are covering everything from an employer access to employ social media profiles, whether that access be willing or not, and that's a big question. and then, of course, what they do with the information gleaned from that, from those sources, and what's permissible. so my hope is that we can, i will go through my issues, and together at the end of the q&a we can expand abroad and/or deepen the issue. so i'm going to start with from the employer said. the first issue, an audience of lincoln is the idea of liability
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and risk. when hiring people, there's always this idea of a reputation of liability, right? you will bring some into the fold. you here employers think all the time they want to hire someone who is a good fit at what does it mean to be a good fit? it means someone who shares the values and the culture of the business, and who would be a good, not only good steward of a good representative of the company. of course thing that leads us to the legal risk. a somewhat little-known toward has been revived by social media which is a tort of hiring of course. and it's a tragedy that is recognized in all of it more than half the states. and, of course, as the name implies, it is a potential legal liability for a business to have not done its proper homework in
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hiring someone which resulted in harm to a third party. the next issue from the employer side as i see it is that prospective employers want, and to some degree, must be able to judge an applicant on as much information as possible. the hiring process is a discriminatory process. discriminatory in the general sense. you discriminate, we discriminate on the appearance of the applicant, on the presentation of the applicant, on whether the applicant seems to be someone who is reliable, responsible, trustworthy, morally sound, has good manners. and none of these as we all know are protected classes. so, so there is a lot of judgment going on that employers
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need to be able to view. so we also need to remember in this i guess categories is that in the u.s., we have no rights to privacy in public. we have no right to privacy in things that are publicly acceptable, or publicly visible. and i think that there's a big misconception that a lot of people feel about that. so on one hand, the behavior that is evidence by some online research can be grounds for denial of employment, right, so this is the famous red so low-cut picture, for those of you not from it with the red photo cut, my apology to the trademark, is this is the famous 16-ounce redcap, ubiquitous and fraternity parties and things,
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and usually signals that there's drinking of alcohol going on, a rowdy party for some, they're depicting an employee in a context which may not be desirable for the employer. from the other hand, for some employers the fact itself that the employee has allowed this information to be out in the public implies either, at the very least a kind of lack of technological sophistication. how do you not know to figure out the privacy settings are not do this at all? or even worse, a lack of common sense or a lack of good judgment. and finally on the employer side, i want to note that at least in today's world, the idea of professionalism, although it
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has evolved, it really hasn't i think evolved that much. dignity, it gives us currency for establishing and implementing relationships. and the freedom to craft our identities, right? but one of the functions of privacy also is to allow us to play different roles, to play different roles in different settings. and in a sense that's exactly what the corporate persona, the professionalism gives us. unfortunately, that also comes with two words that we don't like, concealment and a lack of freedom, right? because in the workplace, as you all know, you can't wear what you want or necessarily -- you
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can't wear what you want or say what you want, or act just in however, however you want to act. there are certain norms that we live by and those norms are known as professionalism. so since privacy is somewhat about concealment, i think this is kind of a sticking point, something that is uncomfortable for us as lawyers and advocates. because the word concealment just doesn't sound good, right? the word concealment sounds to us like a legalized label for fraud, or for distortion or four misrepresentation. and so to some extent this issue is about, it boils down to what level of this playing different roles in different contexts that
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we see proper to allow applicants and employees generally. so this leads me to i guess the perspective from the employee's side of thing. obviously, if the employee or prospective employee doesn't know that research is taking place, this could lead to very intrusive, uncomfortable feeling of surprise. i think this element of surprise is probably less than it was a couple years ago when employers started doing this, and we've been at least in business for very actively educating students from the first day on campus as to, you know, creating their online persona in an appropriate way. but i think this feeling of surprise is true and it happens whether or not there is, let's
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say, a reasonable expectation of privacy in the information. it's akin to having a guest in your house and maybe finding out that they went through your sock drawer, or maybe even worse, your medicine cabinet. it's just, to put it in legal jargon, and geeky feeling. -- and geeky feeling. so if a prospective employee had knowledge of the search, we also have somewhat of a conundrum here because we cannot ignore the power differential that occurs in a room between a hungry job applicant with a family to feed, and someone offering a livelihood, especially in the rough economy. so the idea of coercion, the idea of informed consent, in air
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quotes, is one that is troubling and one that we're going to have to grapple with. another concern from the employee side is the concern of misjudgment. week, employers, often when you run these kind of searches, especially when their clandestine, they do so in an area absolutely void of context. and we all know what happens when there's no context. especially when you're looking for something bad, it's very easy to interpret that red so low-cut picture something illicit as it could really be punch at a school for. or something much less controversial than that. there could also be an error or could be a posting by a third party. there could be judgment on
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content that was not uploaded by the person but maybe was uploaded by a friend who was put on their profile. so now the applicant is not like being judged by the content of his profile, but maybe some of the posts or the wall post or whatever that their friends have shared. and who doesn't have friends that they want to hide from their employers? so, so this is probably exacerbated by the fact that there's a lack of rebuttal. there's no rebuttal here. there are no rules of evidence here. there's no opportunity in most cases, especially for workers that are performing maybe nonexecutive jobs. employers are not likely to bring them back and say hey, you know, i saw the picture of you and i know you are on a cruise,
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but, you know, tell me what was going on here. that's not really, that's not really what happened or has happened, my knowledge in our current world. and then i think probably the worst is the idea of backdoor discrimination. and now i'm talking about real discrimination, legal discrimination. this idea up and see these discrimination, this idea that an employer could find out information that they base employment decisions on through a backdoor, through a clandestine channel. so think of the woman who post on her facebook page that she would like to when they have a big family, and that's not compatible with an employers decide, or the person who says that he observed the sabbath, and that's also not compatible with what an employer would want.
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this, not only is it dangerous that it's dangerous because it's going to be very hard to prove, very hard for the employee to even know what coming in, what happened to and hard to detect your so with those comments, that kind framework, i'm going to pass it on to geoff and renée, who will give us how it's really done in real life, practical perspectives. >> thank you. spent thank you. >> good morning, everyone. to follow up on the wonderful framing of the issues, geoff and i want to tell a story. when this panel was put together, geoff and i were put on the panel and i don't think the conference knew that geoff is actually my client. so when i saw his name and he saw my name on the panel, we got
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together and said, you know, wouldn't it be great if we could tell the story of how we met and the work we've done together to follow up on pretty much all of the issues that were just outlined. so some of the work we've done is confidential privileged so we will be touching just the top weights of it, but it is to us a good story. so back in, i think was july of 2010, just company was getting ready to launch them and just company, they do what you would call social media background checks. so instead of a criminal history report being run, it's a report other publicly available social media, profiles, anything on the internet. i had received an e-mail from geoff and the ceo of the cup racing did read an article i'd written, and they would like to
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talk to me about some of the issues involved with what the company was planning to do. from the legal perspective to make sure they were doing it correctly. at this time i was a third year associate, and we set up the call to kind discuss what it outlined in the article i had written, which is from their perspective what do they need to do if you're running a social media background checks, to make sure that the employer is only seeing the information that they are technically allowed to be reporting to the law. so we talked about state, federal, local anti-disco nation statutes, how they differed wildly from states to states and of employers are not just the information about the company, and not make and implement decisions based on it. we talked about, generally about privacy laws at the state and federal level and how only publicly available information to be used. so that they would be no
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hacking, no asking applicants for passwords, no, you know, however else you may be able to access a person's profile or information in a nonpublic way. we did talk about negligent hiring and how this would be a good tool to combat a claim of negligent hiring, say we actually ran a social media background check on this applicant in addition to all the other checks that we ran, and had doing this type of thing could combat negligent hiring. and then at the end of the conversation i just include were saying to geoff, have you ever considered whether you have to comply with the fair credit reporting act? and they turned back to me and said, yeah, we were hoping that you could answer that. and for those of you don't know, the fair credit reporting act regulates, you know, companies
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that they are called customer reporting agencies. companies that do these traditional background checks, criminal checks, credit history, all of those things. and it's a fairness statute that was written a couple decades ago in order to protect in the implement context applicants and employees in certain situations. and it requires a disclosure and authorization to the applicant that a check is going to be run. if there's information in the report that the applicant concludes is enacted, it provides for dispute resolution process, and if the employers decide to make an employment decision based on what's in the report, it requires an adverse action letter, a pre-adverse action letter basically telling the potential employee, we're going to make a decision based on what we found in this report. you have five days to dispute it, here's the process, here's how you contact the consumer
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reporting agency. sy said he geoff, have you ever considered whether you are a consumer reporting agency? and he didn't know the answer. i mean, at this point there was no other company doing what they do. and still today really there is no other company spent i believe my response was, that's what we're talking to you, so if you could help us figure it out that would be great. >> some sort of working together right after that call, and one of the first things we did on the business side was set up what we call a cuban level review. so after the report is generated, someone at geoff's company has to look at it to redact common, protect the information and do various other things. so we compiled a manual for the employees of social intelligence corp. to actually do that work so that employers never sees the information that they're not
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allowed to consider. and then we set about trying to figure out how social intelligence could comply with the fair credit reporting act. the definition of consumer reporting agency is so broad in the fair credit reporting act that it applied to what his company was planning to do. and there was really no way around it. so we started working together to figure out how this law that was written over the long time ago without any of what this company is doing in mind, how we could comply with the. there were things in the statute, and by the way, do you ever have trouble sleeping? fair credit reporting act, i highly recommend reading it. it's brutal, it can be brutal at once. it cross-references, unicom it's got definitions, and very broad definitions. so we decided that it did apply and set about trying to figure
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out how we could put this manual together. and we did and geoff and i were talking last night, i don't know that we realized it then but i definitely realize it now, this is very cutting edge work. we are trying, we had no blueprint, no roadmap on how to do this, just me and geoff and max sitting down with the statute doing the best we can to figure out how to comply with it or kudos to geoff and his company for trying to do it the right way before they launch and really sitting down and getting the issues in order to be fair to the employees, to the employer, and provide a great service to employers. so fast forward, we put this manual together of how to comply with the fair credit reporting act, basically just so that we knew that the company was
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following the law. and then in -- >> or at least to the best of our knowledge. >> for ability. during the process we called the ftc for guidance on how we could possibly follow this law that is written in a way that makes it very hard to comply with. recalled anonymously and i explained to the ftc is is the covenant, this is what they're planning on doing, how do we comply? help us to understand how the statute applies to the business model. and had a great back and forth with an attorney at the ftc who helped us think through a lot of issues, and they were actually really excited to think through the issues. when i would call and ask questions, the attorney that i spoke with would say, you know what, i don't know the agitated, this is a really interesting issue, let me talk to my colleagues and i will get back to you. so we had this interaction with the ftc which was helpful and
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collaborative, and then fast-forward to, i think it was october -- >> we launched our employment in october 2010. >> and at the end of the month we got a letter saying that we are on the receiving end of a nonpublic investigation by the sec. -- ftc. we don't know how the investigation was started. it wasn't from the conversations i was having with the ftc because that was always anonymous. i never mentioned the client, but we actually, when we first get the letter, we are being investigated by the government and you have that moment of positive, like -- >> certainly a little overwhelming for a newer company, a management team that received a seven or eight page letter with 15 very detailed questions. but fortunately because a lot of the work we have done proactively, we were well-positioned to be able to
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respond. >> right. after we got over the initial shock that were being investigated, saw it as an opportunity to show the ftc, here's what we did. we made a good faith, more than recent effort to comply with this statute. here's how. and if we missed anything, or nested up, tell us and we will fix it because -- missed it, trying to comply and here's all the proof. and again, we interacted with a different person at the ftc but ended up being a lot of the same collaborative, okay, you know, how are you comply with this section? we would answer that. and the ftc investigate would say, good, but he would tweak it a little bit. and so there was this back and forth so that we could refine the processes, refiner manual, make sure we're doing everything for a good.
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then at the end of the day in may 2011 the ftc closed their investigation, determined that social intelligence corp. is a consumer reporting agency, which we knew, and we have moved on from there. and it was actually a great experience to confirm that what we've already done and to confirm that what the company was doing was, you know, complying with the law as best as possible. that's kind of the story of how we met, and it frames a lot of issues from the fairness perspective, from the nondiscretionary specter, the state statutes, privacy, addresses all of the issues from the employee and employer perspective, as far as i'm concerned. and so we just wanted to share that story because it's kind of an interesting segue, and we will let just kind of explain a little bit more about the company and what they do speak good morning. so i think it's only appropriate since we're talking of social media about, before comment on your comments that i've ever
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know i'm going to officially licensed my comments. so now that i get that out of the way. so, as renée said, when we embarked on this project of trying to determine what, could social media be used through public available electronic information be used in a legal and compliant fashion to enable employers to make, to help inform their hiring decisions they make, it's definitely very daunting journey to begin with, but what we realized early on, and i firmly believe this debate, that the best way to protect employers, both from a negligent hiring perspective but also from the perspective of ensuring that they are being fair entry to the job applicant is start by protecting the job applicant. and the process that we followed, and certainly we've learned over time and refined, it really is about eight, making
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them away of what's happening, ensuring that they have consentt and even heade had that come eng that the organization that is requesting the background investigation of the background check has permissible purpose. from there, also ensuring that there are steps that they keep them informed, whether that's through adverse or pre-adverse notification, and also enabling them to have the ability to dispute. but in addition to that, what was very important to us was there is information. everyone understands that there is a social media is rich with information. unfortunately, and i think everyone in the room will agree, it's also rich with information that a lot of times can be used in a probably, sometimes intently and sometimes, you know, not necessarily intentionally. and so for what we understood
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was, we need to have a process that protects them and ensures that the employers only see information that is both relevant to the position as well as legally allowable, and ensure that the information is only being used, the information that can be -- is the information is publicly available so there isn't a question of, are we invading someone's privacy, and are we circumventing, circumventing the privacy settings of different types of things. so from our perspective it's very much, if we can protect the job applicant, we can protect the employer. as i think patricia did an excellent job, the employers today are in a very tough position. they can be found negligent if they choose to ignore this information that is out there, in addition to the fact that they take on business challenges
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of competitors are using this information, while not, be with the people they're going to be hiring again that using the same information? so on one side they can't just ignore the information, but on the other hand, they can't just willy-nilly go out and -- [inaudible] hey, hiring manager, before you bring this person in, before your extend an offer you should go use your favorite major search engines to determine what you find. they can do that either because they, that is not fair to the job up and come and come on, they expose themselves information that not have to prove that they didn't use if they didn't go to make an adverse decision. but it's a very interesting challenge that employers are in a box. and so really our focus was enabling, trying to solve this problem for the employer by being a third party, by only showing the information that is relevant, having a fair and
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consistent process and by having a process by which we only come we aren't the decision-maker. we are providing them information that they can take into consideration to make a job or a decision. .. >> than, you know, speaking at conferences and other things. this is probably an indication they are highly interested in
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their profession and actively engaged. so while there's often a, look, you can sell a lot more newspapers if you talk about all the bad things that happen, i think we understand that. but there's also a great opportunity to leverage the positive information that's out there so you can get a whole view perspective on an individual when you take into consideration whether or not you want to hire them. >> do you find that -- it's incredibly thoughtful how you collectively step through such a new space. do you find that this has been an accelerant to the business, or this is something that's made it more difficult to launch? >> i think, actually, it's been a great benefit to us because it, by tackling these issues early on and certainly i'm not going to suggest we solved all the legal and privacy and other issues, especially not in a room
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full of attorneys. i would never suggest that. but i would -- it enabled us to build a business in a way where we feel like we are the gold standard from a prosper spective, and we are a gold standard from a compliance and legal perspective. and while there's always room for improvement, it gives a very good foundation for all of the other areas that we want to, that we take into conversation as we look into different areas of spanning what we do. >> and, renee, was this your first time interacting with the ftc in that kind of one-to-one way? >> yes. >> and so looking back on that, would you have done that differently, or do you recommend that approach to folks who find themselves in an ambiguous situation? >> i'm always of the mindset to try. if you have a question that needs answering especially from a government agency, i see -- especially if you're doing it anonymously and not naming your
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client, i see no harm in asking, you know? there were definitely issues we were legitimately stuck on, and certainly if we didn't get a response or an answer, we would have formed our, you know, our best guess as to how we could comply. but it was nice to have that dialogue both before the investigation and during. and i can't say i would have done differently. we, um, again, we saw it as an opportunity and even, you know, the papers that we submitted in response to the nonpublic inquiry, we were very open. and, you know, we didn't really -- we didn't hold anything back because there was nothing to hide, because we had tried our best. so in this case when you're doing something so new that no one else had done, i didn't see any alternative. we were already making things up, you know? so why not see if we can get a little guidance in that regard. >> so turning back to the professor, now that we've sort of fleshed out where their
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business model started and where it ended up, looking through the filter of some of the concerns that you had before, can you talk about your reaction to the way they're organized and whether you still have some of those same concerns, specifically with that business model or with some of the issues raised by the screen in general? >> i think, i mean, i think it is a great, it's a very clever business model. whose time has come, probably came a couple years ago. with a lot of tears from people that didn't have it. i think, i guess my only concern, and it's not really a concern, i don't know that you can address is, you know, who, who is your client? who is your target client? because i would imagine that people who -- i would imagine, first of all, that a lot of employers are engaging in this activity. but the employers that are more
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disposed to hiring you and to spending money into insuring this fairness of process are going to be looking for executives and are are going to be looking for kind of higher -- so i guess my concern would be how about everyone else? >> i think that's a, i mean, i think it's a very reasonable concern, and i completely agree. i think that employers if you look at a lot of the various surveys that are out this both on the recruiting side and on the applicant screening side, employers least anonymously are very open about the fact that they leverage social media when they make, go to hire an individual. and i, frankly, one of benefits that i see that we bring to the applicant is that we enforce that fair and consistent process separate and apart from just having employers out there doing
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this on their own without any reasonable processes, without any consideration of what information is legally allowable. but i agree. i think that if this information's going to be used, it needs to be used in a considerate process and a way that is consistent throughout. >> i think there's another dimension to this which is the sociological dimension which is what will be the behavior change from people now that this type of screening exists. and clearly, there's value there. and, clearly, employers will be looking to more nontraditional sources of data and unsights on individuals that they're going -- insights on individuals that they're going to invest in not only in terms of compensation, but benefits and in terms of their career. and have you started to see a change amongst your students and their behavior on social media?
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>> about, about four years ago my colleague, abner levin, and i conducted a survey among student, business students specifically that were about to go out into the job market. and we asked them all sorts of questions from, you know, their feelings on privacy policies to whether they believed that there was, um, that work and professional life should be separate and that employers shouldn't cross-judge or go beyond that line. we also posed several questions, and one of the questions was do you think that it is appropriate for an employer to search social networks for publicly available information on you. and we were somewhat surprised that even though they really wanted to participate and they weren't willing to opt out or give up in participating online because that was their
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existence, in essence, over 50% of them said they they disapproved or highly disapproved of that practice. fast forward now about five years later, and i don't have empirical evidence, but connectedly i would say that a lot of the students that i mentor and i teach colleges and even high schools and middle schools have been doing such a good job over the past couple years of really kind of inculcating in children and young adults that, you know, you need to be kind of like your own personal pr agency. that really that is -- i'm seeing the fruits of that. i'm seeing for the first time a lot of students opting out, students even sophomores in college telling me, you know, i just don't have time for it. i, or i'll go to instagram or
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i'll tweet every once in a while, but nothing offensive, nothing inappropriate. they really have this kind of appropriateness meter put into them. and at least, i mean, that's, that's what's going on at least in higher education. so we were talking about it last night at dipper, and he called it -- dinner, and he called it, i think, the shift from social to antisocial that he's casually observed. >> there's been a disperception, in my opinion, that young people don't value their privacy. and i think they tend to be much more sophisticated -- >> yes. >> -- about the networks they use. and also one thing to step back, we've been talking about social media as a thing, as a homogeneous thing, but there are many different types, right? there's facebook, there's twitter, there's instagram, pint rest. >> well, from our perspective, we really consider there to be 13 different categories of social media, and looking at it
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more broadly from our perspective it's really about publicly available information, publicly available electronic information with our focus really being on user-generated content. so content that i as an individual am putting out there about myself versus i think patricia brought up the comment or statement earlier regarding, you know, what a third party, that friend that none of us would like our perspective employers to meet or probably our mothers either. we're looking at the content that the individual themselves is putting out there or allowing to be put out there. >> so not all publicly available information about that person. >> really focused on the user-generated content. so content that you yourself are putting out there whether it's if your blog, whether it's within your social networks, whether it's within articles you posted. it's really that type of -- >> it raises a broader issue of
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identity and reputation in this, in this new world where we're connected in so many different ways. and definitely there is a behavior change with younger people, in my opinion. also i believe when every fortune 500 ceo is talking about a social strategy, that's probably when your grandmother says bling. it's probably sort of at the end of the life of that phase. and so there's many few messaging and communication vehicles out there, snap chat has become wildly popular, and it is now private. i think it gives a misperception that it's private. but certainly these are issues that have a lot of different dimensions, and, you know, i think that you guys have, again, been very thoughtful how you step through. again, there are other companies who have not been as thoughtful, and i think that's why we've had this spate of state laws that
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have arisen with maryland passing first and illinois, california, minnesota also passing laws. but there's tremendous value in understanding who you're hiring, and there also is tremendous value to the individual to know that this is the world we live in, and, you know, there are many different sides to the issue. with that i think we wanted to turn it to the audience for some questions. >> i would ask people to just hold their question until the microphone reaches them. >> thank you. i thought this was a great rundown of the issues. it's a shame we, unfortunately, lost one of our speakers from the aclu from this panel. she had an emergency hearing this morning. but i thought i would push a little bit from the individual's perspective on some of the thing that is you said.
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and i thought it was fascinating, the experience that you went through to see how to comply with the fair reporting act for this kind of -- what is a consumer report on the individual. and i thought it raised a whole set of questions about the efficacy of the fair reporting act and the sheer appropriateness of doing this kind of social media search. so when you look at the fair credit reporting act, the statute has a special set of rules for something known as investigative consumer reports which are personal interviews with third parties. and back at the time it was written, um, that was seen as incredibly intrusive because it was asking kind of neighbors and friends what does this pimp talk about, what does this -- what does this person talk about, what does this person think. effectively, what you're doing is the same kind of type of report that the investigative
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consumer provisions were really designed to be helping consumers participate in that. and automating it now because you can do these on searches all of a sudden changes both the economics of it, the dynamics of that relationship in ways that i think is a real sea change for how the fcir works. and i wonder in sort of thinking this through how you might see this both affecting the industry and then, second -- [inaudible] >> well, from a, from our perspective, and i'll let others answer questions about the specifics to the investigative report aspect. from our perspective, because we are focused on user-generated content, information i'm putting out there about myself, it doesn't, it doesn't really fall into that category of what are my neighbors saying or what are
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my friends saying. and then, secondly, just to reiterate a point that i tried to make earlier, one of the processes that we put in place was to adhere to the fair credit reporting act and make sure that we could meet the requirements around maximum possible effort to insure accuracy that we instituted the, our multitiered manual are view process. and what that enables us to do is we use technology to do the building a profile of an individual, but then we have an individual that goes through and insures thatst the right person -- that it's the right person using standard process for data validation of the data elements versus what we can address to being related to that individual. they go through the process of redacting any protected information, and we're only generating reports in situations where the information, positive or negative, meets the criteria
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that's been defined by the employer. so it's through that process that we try to insure that some of these issues that you're raising are addressed. that being said, i'll let renee and trisha speak to the broader topic. >> on the fair credit reporting act, i mean, i would say that it's definitely not an investigative consumer report, so we've treated it as a consumer report, and, you know, our goal from the outset was to comply with the letter and the spirit of the law. and at the end of the day, the fair credit reporting act is a fairness statute, and it has the built-in mechanisms for the applicant, you know, the kind of back and forth to dispute, to know that it's happening, to know that a decision is being made. and so at the end of the day, you know, our choice was to do the best we could to comply with that in fairness to the the
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precipitate. and then at the end -- the applicant. and then at the end of the day, the employer gets only information it's allowed to see, and everybody wins. >> i think, you know, there's been a lot of question with the advent of new technology and social media when the fcra is dynamic enough to still apply the same way. and i think that the ftc's established position is, yes, that it is, and they'll continue to apply it. it's fundamentally based on fairness. but a lot of it will, the course that it will take will depend on how companies leverage this information and how service providers make offerings around this information. and, clearly, you've taken, again, a thoughtful route in putting in multiple layers of controls. one question i did have is do you find it difficult to extend some level of control to the
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behavior of the companies, of the clients that you're providing the information? >> for what we do is to insure our controls on the company, we only give them a predefined set of criteria that fall into a couple of broad categories so they aren't able to come to us and say we want you to give us information, all the information related to x. they are very specific buckets prone to areas of risk and also areas of opportunity related to the job precipitate that we're focused on. at a high level, those errors really fall into on the risk side demonstrations of intolerance or racist behavior, things of that nature or types of things that we would identify can and report to an employer that fall into our risk category. and then on the positive side, as i mentioned earlier, or on
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the opportunity side, identifying situations where an individual is active, you know, a member of multiple professional organizations or things of that nature. >> i think the adverse side is the more interesting to people. and in terms of adverse actions, and, renee, maybe can you walk through procedurally how that, how an adverse action -- >> um, so, you know, same way as if it were a criminal background check. you know, if an employer is using geoff's services, gets the report and makes the employment decision which in this case is the decision to not hire based on information contained in the report, the employer has to send a preadverse action letter to the applicant which basically says we're planning to make an adverse decision based on information found in the report. you know, you have -- here's the name of the consumer reporting
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agency. if you want to dispute the accuracy of the report, call them. you have five be days. you have five days. if it can't be cleared up in the five days -- some employers will extend that time frame. if it can't be cleared up, the employer then sends a letter saying, okay, we are now making the decision. to not hire you. here's the information about the fair credit reporting act, state law equivalents. so there built into that there's this, you know, ability to object to the accuracy of the report, and there's a dispute resolution process built in. and i would just say employers are doing these searches on their own. i know this because my clients call me and tell me they're doing it, and they want help doing it in a consistent way internally. and so i do a lot of that work, and i see how inconsistent it was before they called me.
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i -- so employers are doing it in house, and we can definitely set up a process to do it that way. but at the end of the day, i'd rather them doing it this way. it's a better procedure, it's consistent, it's fair. if employers are doing it in house, they don't have to follow the fair credit employment act, so the applicants never know that it's happening. so i'd rather see them use social intelligence as much as i like the work to help set up those internal processes. i'd rather see them use this because i know it's as compliant with the law as possible. so that's kind of where i come from. >> i think my question was more nuts and bolts, that do you provide a template for the, for those employers to issue that adverse action letter? >> yes. there are form -- they provide, i mean, i've drafted and they provide the actual letters, the
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notice and the authorization and consent forms, all of those forms to the 'em low to use or do it -- employer to use or do it themselves. >> just to add to that. so we have the standard forms that we provide them, but for all of you in the audience to not be alarmed, we always make the recommendation that they should speak to their counsel ability the appropriate forms to use. so they can use these as suggestions or guidelines actually. >> can you talk to us a little bit about what a report looks like? so let's say that, you know, that you find something that, um, your staff interprets as a sign of potential intolerance or racist behave -- can behavior. will the potential employer receive a copy of what the person owed or -- what is an actually report? >> we tell them where we found the information, how we determined that the information was related to that individual.
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we provide them a screen shot in which we redact any protected information wells a coup -- as well as a couple of other. here's a url where we found it, here's a redacted picture. >> but they can go from there. >> i mean, it's publicly available so, yes, certainly they could. we suggest to them that they don't. >> and they're also sweet led to a copy of -- entitled to a copy of the report for the -- >> the applicant. >> the applicant is, yes. >> so again, as push as you're comfortable, is there proprietary scoring for how good or bad something is, or they are just what they are? >> we look for a very, as best we can, objective set of information. we don't do any form of scoring, and certainly i think that that's an area wrote control then -- where you really then do get into issues around, fairness issues around, frankly, privacy. because the minute you get into
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scoring, it gets to the individual, well, how was i scored, what algorithm were you using, how is it objective. the same reason i am not a proponent of purely automated solutions, i am -- i don't think at this point it'd be a very good practice for employers or organizations providing services to employers to utilize any form of scoring. >> in the scoring, um, then it would become who's really making the decision. i mean, you're providing the report, the employer is making the decision. in theory they're making the decision along with a whole host of other information, you know, resumé, traditional background check, references, interview. and it just is a complement to all of that. so that's how i see that issue. >> yeah. i think that that's a very
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important point. this is the information contained within social media isn't necessarily being used in a vacuum to make decisions. it's taken into consideration with all the other tools and services that are available for employers. >> can you just introduce yourself first? >> i'm -- [inaudible] the president of the national work rights institute and formerly at the senior level of the aclu who's not here today. you're probably expecting me to get upset with you. i'm actually really encouraged by what you said. >> thank you. >> because the idea of this is going to happen. if i were going to start running an hrd., which i used to do -- department, which i used to do, i would do it myself. what scares me is the fact that somebody in hr seeing everything on somebody's facebook page and makes some crazy ad hoc decision
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that they don't like aclu lawyers, and i'm out of a job. the idea of yous sourcing to a -- outsourcing to a third party is exactly what we've been preaching for some time now. my question goes to, though, how do you determine what's relevant? for example, the famous red cup issue. if this guy is 21 years old and there's no children around and he's not driving a car, is the fact that he's drinking alcohol job-related? >> so that's not -- that isn't even a piece of information that we would provide to an employer. it's not -- they have a set of cry criteria that they can choose from. that doesn't even fall within the -- we are focused on areas of potentially violent activity, you know, demonstrations of intolerance, potentially illegal activity. and really it's those core areas that -- and i know that we don't
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want to talk about the positive sides because no one cares about that, we'll just talk about the adverse sides. those are the areas of risk that i think are the most concerning for an employer from a negligence hiring perspective because if this information is readily available and they could have seen that this individual is out there making these types of statements or demonstrating a form of discrimination towards another individual and think don't look at -- they don't look at the information, they hire this person and now this person goes and does harass a coworker, another stakeholder of the organization or, god forbid, a customer, well, now they have some real issues to take into consideration. so -- >> [inaudible] >> thank you. >> next question. >> hi. i'm jen runney, and i'm the
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interim secretary of the i.t. law committee at the association of the bar of the city of new york. this is a topic, what your whole panel is dealing with today is something that we've talked about a lot, but i think that one thing that you can't ignore, it's not just the 800-pound gorilla in the room, the blue whale in the elevator, is that people are going to be doing this sort of thing offline. i appreciate the service that you guys are trying to provide, but at the end of the day, i mean, as long as an employer -- there's nothing to stop a private employer from just using their home computer to check someone's site. and another issue that sort of touches on this is even if someone tries to keep a squeaky clean profile and think, okay, on my facebook page i'm not going to have pictures of my kids, i'm not going to mention any political affiliations whatever, it's going to be totally squeaky clean, this is been recent case law saying that with as little information as just your name and your zip code, you can get a plethora of
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personal information on someone. and people might even forget there's other places where there's personal information leaks that could be used like your amazon wish list, your meet-up groups. a lot of people don't put the energy into really making a complete second identity entirely for their private life and keeping it totally private. i do, but that's just me. [laughter] but, again, there's so many other ways where that wouldn't even necessarily be traceable as a source of discrimination. something like just a last name. you can go to babies r us and say, hmm, does this person have a registry with babies r us or did they recently get married? things like that. there's so many different information leaks out there. how does, how do do you address the fact that they can be accessed in a way that's not traceable back to an employee so they might incorrectly use in this information? >> i think the question is who
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is the you? because there's -- i think it's incumbent upon the individuals to start to understand that that's the world that they live in and to affect some sort of 3w5eu6r8 change. and maybe not to the point of sort of bifurcating their personal and professional lives, pause that's not completely -- because that's not completely possible for a lot of people, especially in the nature of the work they do. but e also don't know that's reason to abandon the legal construct, you know, to protect individuals in this area. >> well, and i'd say to that point i agree that it's, employers or, frankly, anyone has the ability to whether it's from work or from home go and search other individuals. that's, frankly, why i think it's to the benefit of the job applicant to have processes in place like what we are doing either through third party or if those processes are in place at
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the employer and they're doing it internally, those are the pieces that are important. and it will be interesting to see, currently we're seeing this legislation going through where there's a focus on using, requesting user names and passwords from an individual. they'll be interesting to see over time if there is guidance from a legislative perspective stating employers, if you're going to use this information, you need to have a third party do it. you can't do it yourself. and you, you're going to face legal risks if you are doing this internally on an ad hoc basis. >> well -- [inaudible] >> it's ip sid yous -- insidious. >> so i would just say to that, you know, discriminatory hiring was really hard to prove before the add vent of the internet -- add vent of the internet.
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and a lot of times how it would come up was you'd hear it through word of mouth. and i think that's a possibility. but i would also say it might be easier to prove now. you'd be -- i work with a lot of forensics experts who examine computers, and it's amazing what they can uncover as far as what sites you visited, how long you spent on them, what information you looked at. and so i think it can be proven depending on what you've done. if you have done it internally and done it yourself. your average citizen can't go and say, you know, okay, so your computer is, let's say, i'm pulling an employer out of the air, okay, pfizer, your computers at home are squeaky clean, but your computers on site are squeaky clean, is joe schmo who got turned down for the job really going to be able to subpoena every single person who had their hands on his resumé, get subpoenas for their
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home computers or their ipads or their cell phones or their public browsing habits at mcdonald's or starbucks -- >> i mean, if you sue, you can get that in discovery. >> you know and i know that your average person who's your average job applicant does not have the resources to do that. >> hire a lawyer -- >> but i think that also goes to the point that that may not be so different now through the lens of social media as it was with discriminatory hiring practices before. very good questions. a question in the back. >> so you've been talking about this in the lens of ftc guidance, but given the recent actions and saber rattling by the cfpb, don't you see some new lens being applied to these
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activities, some new regulation, some new perspectives coming down, and if so, can you share those? what has the c finish pbdcfpb been saying? >> i have not spoken to the cfpb. as far as new legislation, it's still not coming. the ftc has been out front as far as enforcement at least in this regard. you know, the new -- the only new legislation to speak of is at the state level with these password request laws that are making their way through various state legislatures. but other than that there's not a lot of legislative activity. >> i think the cfpb and the ftc are finding their way around each other, and definitely there's a loot of overlap -- a lot of overlap. you're speaking with specific expertise from financial services. i don't think you introduced yourself, but with mastercard, i
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believe. and so i think in financial services, financial services has been hesitant to start incorporating this social data absent some very vanilla, benign uses, and i think that's the right approach. and so i don't know that there's been, there's been any issue to sort of gal galvanize perspectie from the cfpb about. definitely it's something they're focused on, and should people start using this to make decisions about creditworthiness or something hike that, then we -- like that, then we certainly could see a position for it. >> yeah. and, certainly, that's not an area that we have any touch to now and don't, i don't anticipate us trying to delve into that arena because i do think that there are, that's a whole other pandora's box to get your head -- that we would have to get our heads around, and legislators need to get their
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heads around and regulators need to get their heads around. and so, you know, from our perspective that's determining one's creditworthiness based on social media is a -- it may be coming at some point, but i think it's the not near enough we're going to want to get involved. >> we had another question here. monique? can you wait for the microphone? >> hi, my name is monique, i'm an attorney. patricia mentioned earlier that applicants are becoming more and more privacy savvy. so i have a question for geoffrey. what is going to happen to your business model when precipitates are starting to can be applicants are starting to post all their privacy settings on private? >> it's a very good question. i would say that -- and we've actually done, we've spent time proactoffly going out and educating college students about how to set, how to set their
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privacy settings correctly, how to, you know, what employers are looking for, what's, you know, what's important to them or relevant to them from a risk perspective. i'll say despite, frankly, our best efforts and it sounds like the efforts of, you know, many of the educators out there, we have, we've only seen the usage increase across social media both, both, you know, older individuals are becoming more and more savvy and much more engaged, and we are only, frankly, we're only seeing -- we aren't seeing a decline in the ability to identify publicly available information. now, whether or not with other other -- we're over time able to identify less relevant content, hard to know. but it's certainly a very good, from a business case
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perspective, it's certainly something that we're conscious of. >> next question over here. >> my name's -- [inaudible] actually i'm on a swat call from the australian privacy commission, so i'm very excited to be here today. i suspect people have been making decisions on the basis they do not disclose for a long time. so if you had red hair and they don't want an employer like that, they will find a legitimate way. they'll find something they don't like on social media in their own searches, and they'll commission the independent report and make a decision based on that. but i guess my question is just i'm interested to know, i like the arm's length concept that you're working on x be i wonder if you've ever or how you recruit yourself. do you, indeed, run the reports? is there an independent, you know, is there an arm's length -- >> that's a very, very good
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question. we, so we have a very structured, firewalls process between the individual -- we have one individual who has no touch to the hiring process that runs our, the screening for all of our hires, and they redact and that information's redacted just like what we do for our customers. and so we very much practice what we preach. >> my name is -- [inaudible] levin from the university. i asked you this yesterday, but i wonder if you can speak to it today. what is your opinion about the person that does not have a social presence, somebody who's off the grid? is that something that is a concern for employees?
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>> it's -- that's not -- i can pontificate about what it means from a, you know, a, you know, someone with no online presence, what that means, but that's not something we take into consideration, or it's not something we would report. it's not -- i don't think it's a, it's a very interesting theoretical discussion about what it means and what you can learn or discertain from that. -- discern from that, but that's not something that we would ever report one way or the other to a employer, and i certainly don't think that organizations that are, certainly private sector organizations should be taking that type of information into consideration. >> and i worry about age discrimination with, you know, if my clients were making
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decisions based on no internet footprint, um, you know, that would tend to be people who are older. i'm generalizing, obviously, but i would worry about that. and, you know, there's this, we were talking about last night at dinner, called klout which measures your social media influence. and it is a score. and we all have scores whether you know it or not. and, you know, there are employers who are making decisions based on your klout score. and i don't know the algorithm that goes into calculating the klout score, but it measures your online presence. howhow often you post a twitter, and i worry about employers making a decision like that because, to me, it reeks of age discrimination. to your point, yes, i think it's a concern. and i could pontificate as as to what it means if you don't have an online presence, but
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according to the law, i would worry about age discrimination. >> [inaudible] >> my name is sophia -- [inaudible] and i'm from the french -- [inaudible] authority. so i think it's interesting to share my views on the european per speghtive. perspective on issue. we didn't have anybody coming to us and ask for guidance for such an activity, and i bet it would have been more complicated because on the european side what is very important is the fairness of the collection, and it doesn't mean that you can use publicly available information because several times you insist on that point. but it's not because it's publicly available information that it's not protected by the
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data protection law. and it means that on the european perspective the employers have to specify only the information on skills and abilities of the job attender. and going on social media wouldn't seem relevant, i fear. it doesn't mean that they don't do it, but they don't -- they know that they don't have to do it. it's something on that aspect that it's clearer in your perspective because you say there is something to do, and we are trying to do it the best we can. and it's, obviously, having the prior consent of the applicant and giving back a copy of the
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information to allow him to confess, to explain, to say, oh, but that's wrong. because we receive a lot of complaints at our commission about cyberbullying, about false reputation. and we have some, we have some companies coming as reputation cleaners on the web. and i think there is a huge market there for companies to clean the web. and in that sense i think we don't want to destroy these political activity. but we think that we, we don't really see the relevance of using such information as on the job application. there are already many
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questions, so i had a question about the young employees. because as you are coming -- going back through the season last years if -- through the seven last years if you follow the fair credit act, it means that you would use some information about minors -- >> no, we would never go back to anything that's before someone is of legal aim. of legal age. >> so just to follow up on that point for a second, it seems like there is some analogy, because they are obtaining a consent, clearly whether it meets the specific consent requirements that the e.u. has. but you are not providing a copy of the, of the report itself or the information contained in to the individual unless there is
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going to be an adverse action. .. >> there is a misperception they are erasing information and a lot of times what their doing is really just search engine
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optimization, which is just building technology to push those results towards the back of the search results. so there are some issues that people believe that they now have gotten rid of this bad information, actually it is still there. it's just push down in terms of relevance for the search engine so it doesn't come up as highly. >> i like to think that they displace the information. >> it comes up on page five instead of on page one. >> we have another question in the front. >> my name is robyn. my question is, what happens when social may misinterpret a piece of information that becomes publicly available? like it's a screenshot of somebody as a racist rally that the to be -- that they happen to
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be just walking along the street at the time. you pass this along to the employer. and adverse proceeding issue from the. can you be liable for negligence or defamation? >> whether or not we can be liable, i would need to -- >> have you experienced -- >> we have not had that experience. to reiterate a couple of points, we are looking for an objective set of information, and the reason we have a dispute resolution process is to come in situation where, let's say, an error were to occur and we miss identify something and in the employer were to inform the applicant that they're going to take adverse action, i mean, that is the exact reason we have a dispute resolution process is that they can come to us and we
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can generate a new report based on information they provide. >> theoretically the employer could not hire the person just because of the controversy. and so damage might have occurred. >> certainly there are a lot of theoretical cases that can be taken into consideration, absolutely. >> our attorneys the ones making the decisions? >> we are not making the decision. not to belabor the point, but we aren't making the decisions -- i can't speak across each customer who's making the decision on their part. i don't know. it depends on their hiring process. >> it's not a decision. it's a investigative discovery. i was calling it a decision because at some point it is a decision, but in other words, who is making that interpretation?
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>> identification of potentially violent activity, it goes through multiple processes, multiple steps of quality assurance that it isn't, there is no one person that is holy making a determination of whether or not that content meets the criteria defined by -- [inaudible] >> again, i was intrigued by something that came up a couple of times about the individual, the job applicant, receiving a copy of the report in event of an adverse action, which is a provision under the fair credit reporting act, the adverse action. but there's also another provision in the fair credit reporting act that requires consumer reporting agencies to make available for free once a year a copy of the consumer report. and i wonder when we think about fairness and transparency of
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this kind of information, gathering and sharing for job applicants, i wondered on the one hand if your organization deals with standard annual free credit report, irrespective of an adverse action? and the second, and i think, the way your company is set up, -- [inaudible] i think it's terrific. but i'm sure that there will be lots of other companies cropping up that will be using third party information, first party information, all sorts of other kinds of activity that might not be as careful for job applicants. and i wonder how the data access obligation in the fcra might work in those instances? >> to answer your first question, as was mentioned earlier, we enable the consumer
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to get access at any point in time to the report we have on file for them, adverse or non-adverse. and with regard to other companies doing this in a less compliant fashion or less standardized fashion, that's certainly, certainly a likely scenario. it's something that i think employers need to take into consideration when they evaluate which organizations they work with. i think it's something that has to be taken into consideration by the regulators and legislators as they look at establishing guidelines. >> i was just going to ask -- [inaudible] >> sorry about that.
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>> the eeoc has guidance for employers to do colonel background checks on certain factors, they should consider, and i'm wondering if the panel recommends that an employer does the same thing with the social media type information which mining asking and applicant about a picture or about a certain report that it received? >> i think that, as i mentioned earlier, i don't think that, i think employers should look at this information in consideration of the whole perspective on the individual. i think that they should, they should have steps in place to make sure that this information is being used in a vacuum. and i certainly would, again, to doing things that are, the best way the employer is going to protect themselves by protecting
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the job applicant. and so in that regard, if the employer has steps in place to sit down and have a conversation with the individual about information that is found and not just make decisions based upon it, that's only going to be in both the employers and in the applicants benefit. >> the last question in the front. wait for the microphone. >> right here in the front. >> i'm a professor. and i have two comments and one suggestion. so first, is if we're here to address the question, what considered employees privacy. i think we just come you're doing a great thing but you just moved from the decision for what consider privacy to be perfected from the employer to a third party, which is a good thing.
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but you just skipped the main, difficult question. the second one is, what bothered me, third parties, companies, are doing that investigation over people because -- [inaudible] for the companies to act. and the suggestion is, what about from the candidate is -- himself, provide us with the information that you will, you would like us to go over from social network? that seems much more legitimate, just to grow over the information the candidate provided. >> i think that they are only reviewing user generated material. so by definition anything would be self-reported, not directly
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to them but -- >> but i think it is totally different, self reporting concept of something you post on social media, on facebook or, i don't know, another website, and to have, like you, regarding this specific, give us your -- >> i think that does happen in certain industries, and for certain jobs. certainly if you're hiring case social media manager for your company you want to see what their online presence is, so ask them for the twitter handle, maybe they haven't interesting blog that you'd like to look at. and that's fine if you're hiring for the position. so i think it does happen case-by-case depend on industry and depending on the profession. but, new, allowing access to someone's facebook profile are asking is becoming illegal in many states. so that's not a practice i would
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encourage. >> you're right, that placing the control of information disclosure, on the actual applicant, it's a much better position of power. i will just end by sharing something that often share with my students on this issue, which is that back in 9 90 do you all remember when we're all in the hiring process for our president that year. the news reporters talked about how bill clinton smoked marijuana, and he was on the defensive. and in his, i guess haste, said that he smoked but he didn't inhale, which was then, you know, laughed at and everything else. fast-forward, you know, 15 years, we are now in the hiring process if you want to call it that for president obama. and by that point he had already disclosed, in his book in the
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'90s, that he had experimented with cocaine. now, some people use that example to say, wow, we've come a long way on our views on drudge's. i'm going to say that that is really not what that's an example of, and it's an example of really embracing the fact that we have digital records out there. we have records of our reputation out there, and the more you own and manage the disclosure of that information, the more power you will have. so i will end up with that spent a great way to finish. thank you so much to the panel. [applause] [inaudible conversations] >> coming up this month on c-span2, cabinet secretaries discussed the effective sequestration on their department. then live at 10 in eastern, the u.s. senate return for work on a
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bill for the army corps of engineers water projects. >> today, the senate homeland security committee holds a hearing on immigration policy and border security. representatives from immigration and customs enforcement, customs and border protection, and the homeland security ig's office testified. live coverage at 10:30 a.m. eastern on c-span3. >> today, securities and exchange commission chairman mary jo white testifies on the president 2014, $1.67 billion budget request for the agency and the implementation of the dodd-frank financial law. she will appear before the house appropriations subcommittee on financial services, live at 2 p.m. eastern on c-span3.
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>> senior obama administration officials expressed frustration with the automatic budget cuts known as sequestration. describing the law as quote the worst possible way to cut spending. homeland security secretary janet napolitano, housing secretary shaun donovan, and others, spoke at an event hosted by the partnership for public service. an organization that describes itself as a nonpartisan, nonprofit group focusing on improving the federal workforce. this is about an hour. >> i'm the president of the partnership for public service and i will be very brief because i that bad cold. it is a great pleasure to welcome all of you here to psr w., public service recognition week, and it is our intent that it serves as an antidote to s.b. hud which is that bashing all the time. [laughter] seriously we will never get the government we want it all we do is tear it down. amazing things are goingn

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CSPAN May 7, 2013 6:00am-9:01am EDT

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